The New Jersey Supreme Court recently held that a rule imposed by the Board of Directors of a NJ cooperative apartment building that prohibited its members from distributing election leaflets in the building violated the free speech guarantee in the New Jersey State Constitution (see Dublirer v. 2000 Linwood Avenue Owners, Inc. published December 3 2014). Mr. Dublirer, a resident of the co-op, was interested in running for the Board in an upcoming election and asked the Board for permission to distribute campaign materials in the building. The Board, citing a “house rule” that barred soliciting and distributing any written materials, denied his request, claiming that the rule’s purposes were to preserve the residents’ quiet enjoyment of their apartments and to cut down on litter in the building. The resident sued the Association, and the matter was litigated up to the NJ Supreme Court, where the court found that the resident’s message was akin to political speech and thus entitled to the highest level of protection in our society. Citing to its prior well known free speech decisions in the HOA context, the Twin Rivers and Mazdabrook opinions, the Court determined that while an HOA board can adopt and enforce restrictions that are reasonable as to time, place and manner, in this case the ban on the member’s right to disseminate his election materials to his neighbors in the building was unreasonable. In short, the member’s right to free speech in this matter was found to outweigh the Board’s concerns about the use of the apartment building.
So, the lesson learned for HOA boards in New Jersey is to ensure the rules and regulations of the Association are reasonable as to time, place and manner, particularly when they apply to free speech issues (such as political signs, leaflets and speeches).